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Bush Can't Be TrustedNY Times
This Call May Be Monitored ...
Editorial
December 18, 2005

On Oct. 17, 2002, the head of the National Security Agency, Lt. Gen. Michael
Hayden, made an eloquent plea to a joint House-Senate inquiry on intelligence
for a sober national discussion about whether the line between liberty and
security should be shifted after the 9/11 attacks, and if so, precisely how
far. He reminded the lawmakers that the rules against his agency's spying on
Americans, carefully written decades earlier, were based on protecting
fundamental constitutional rights.

If they were to be changed, General Hayden said, "We need to get it right.
We have to find the right balance between protecting our security and
protecting our liberty." General Hayden spoke of having a "national dialogue"
and added: "What I really need you to do is talk to your constituents and find
out where the American people want that line between security and liberty to
be."

General Hayden was right. The mass murders of 9/11 revealed deadly gaps in
United States intelligence that needed to be closed. Most of those involved
failure of performance, not legal barriers. Nevertheless, Americans expected
some reasonable and carefully measured trade-offs between security and civil
liberties. They trusted their elected leaders to follow long-established
democratic and legal principles and to make any changes in the light of day.
But President Bush had other ideas. He secretly and recklessly expanded the
government's powers in dangerous and unnecessary ways that eroded civil
liberties and may also have violated the law.

In Friday's Times, James Risen and Eric Lichtblau reported that sometime in
2002, President Bush signed a secret executive order scrapping a painfully
reached, 25-year-old national consensus: spying on Americans by their
government should generally be prohibited, and when it is allowed, it should be
regulated and supervised by the courts. The laws and executive orders governing
electronic eavesdropping by the intelligence agency were specifically devised
to uphold the Fourth Amendment's prohibition of unreasonable searches and
seizures.

But Mr. Bush secretly decided that he was going to allow the agency to spy
on American citizens without obtaining a warrant - just as he had earlier
decided to scrap the Geneva Conventions, American law and Army regulations when
it came to handling prisoners in the war on terror. Indeed, the same Justice
Department lawyer, John Yoo, who helped write the twisted memo on legalizing
torture, wrote briefs supporting the idea that the president could ignore the
law once again when it came to the intelligence agency's eavesdropping on
telephone calls and e-mail messages.

"The government may be justified in taking measures which in less troubled
conditions could be seen as infringements of individual liberties," he
wrote.

Let's be clear about this: illegal government spying on Americans is a
violation of individual liberties, whether conditions are troubled or not.
Nobody with a real regard for the rule of law and the Constitution would have
difficulty seeing that. The law governing the National Security Agency was
written after the Vietnam War because the government had made lists of people
it considered national security threats and spied on them. All the same empty
points about effective intelligence gathering were offered then, just as they
are now, and the Congress, the courts and the American people rejected
them.

This particular end run around civil liberties is also unnecessary. The
intelligence agency already had the capacity to read your mail and your e-mail
and listen to your telephone conversations. All it had to do was obtain a
warrant from a special court created for this purpose. The burden of proof for
obtaining a warrant was relaxed a bit after 9/11, but even before the attacks
the court hardly ever rejected requests.

The special court can act in hours, but administration officials say that
they sometimes need to start monitoring large batches of telephone numbers even
faster than that, and that those numbers might include some of American
citizens. That is supposed to justify Mr. Bush's order, and that is nonsense.
The existing law already recognizes that American citizens' communications may
be intercepted by chance. It says that those records may be retained and used
if they amount to actual foreign intelligence or counterintelligence material.
Otherwise, they must be thrown out.

President Bush defended the program yesterday, saying it was saving lives,
hotly insisting that he was working within the Constitution and the law, and
denouncing The Times for disclosing the program's existence. We don't know if
he was right on the first count; this White House has cried wolf so many times
on the urgency of national security threats that it has lost all credibility.
But we have learned the hard way that Mr. Bush's team cannot be trusted to find
the boundaries of the law, much less respect them.

Mr. Bush said he would not retract his secret directive or halt the illegal
spying, so Congress should find a way to force him to do it. Perhaps the
Congressional leaders who were told about the program could get the ball
rolling.